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Judge: Colorado District Broke State Campaign Laws With 'Hess Report'

Colorado's Douglas County school district violated state campaign-practices laws by contracting for and disseminating an American Enterprise Institute white paper that supported the "reform agenda" of the school board, and thus aided the "reform slate" of candidates in the election this fall, Administrative Law Judge Hollyce Farrell found in a Dec. 24 ruling.

The paper, promoted in a district newsletter distributed to 85,000 recipients, including parents, came to be known as the "Hess Report" for its lead author, Frederick M. Hess, the director of education policy studies for the Washington-based think tank, who has been affiliated with the district as a consultant for three or four years, the judge wrote. The AEI report, reviewed by the district before publication, supported the board's policy prescriptions, which include school choice and merit pay.

Titled "The Most Interesting District in America? Douglas County's Pursuit of Suburban Reform," it included profiles of school board members and cited the importance of maintaining "a unified board with a coherent vision." Two incumbents mentioned in the paper were re-elected in November. Two newcomers, also part of what was dubbed the "reform slate," won election as well. An unsuccessful challenger, Julie Keim, brought the complaint that led to Judge Farrell's ruling.

The report cost $30,000, with $15,000 paid by the district and $15,000 paid by a district foundation, the ruling said. The authors, Hess and AEI researcher Max Eden, were tasked with "describing some of the advantages" of the district's model.

The use of public funds on the report, evidence of the district's influence on its wording and review of its findings, and the district's dissemination of the document amounted to a violation of the state's Fair Campaign Practices Act, Judge Farrell ruled. She wrote:

"It was clear as discussed in the findings of fact, that the Hess Report was not a third-party, unbiased study. To the contrary, the report was an endorsement of the reform agenda and explained the advantage of having a unified board to fuel that agenda. ... The Hess Report was purchased with public money to influence the outcome of the board election."

Judge Farrell did not order the district to pay a fine because the complainant, Keim, had not requested it. The complaint had raised other allegations of campaign-law violations by the district, but the judge ruled against Keim on those points.

The district said in a statement that it plans to appeal the decision:

"In the lone claim in which the administrative law judge found a violation, the district respectfully disagrees and will immediately appeal. The judge seems to have concluded that it is a violation of law anytime the district disseminates positive news involving its education policy agenda if there are also candidates for school board who support that agenda. The district does not agree with that interpretation of law.

"This administrative law judge's interpretation is that the district cannot release information about the district if a candidate is running--or may decide to run in the future--and agrees with that information. We do not believe this is what the law states, as it would silence all public entities for months on end. This would effectively muzzle all public bodies in the future."

Hess, who writes the opinion blog Rick Hess Straight Up for Education Week's website, said Friday that he did not discuss elections with the district when it commissioned the report, and that he was careful to disclose his involvement as a consultant when it was published. In addition to district representatives, Hess said, he allowed members of the district teachers' union to review the text to check facts and quotes before it was published.

"Districts commision researchers, writers, and analysts to evaluate or examine all manner of things," Hess said. "I think the report's very clear that we don't know whether or not what Douglas County is doing is going to deliver the hoped-for results. But it seems to me that it was an important, interesting attempt, and it was worth a closer look."

The AEI paper included this statement from the authors: "In the spirit of full disclosure, we note that this paper was supported by Douglas County and made possible by ready access to teachers, administrators, schools, parents, and board members."

The Douglas County district's foundation also paid former U.S. Secretary of Education William J. Bennett $50,000 to write a report that "was an endorsement for the board's reform agenda," Judge Farrell wrote. Because that payment did not involve public funds, it was not a campaign-law violation, Farrell wrote. But she did note that several school board members sit on the board for the foundation, that the district pays the salaries of some foundation employees, and that the foundation shares physical space with the district.

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